Legal representation at CCMA and Bargaining Council

You might have heard that legal representation is not allowed at CCMA and Bargaining council. This is partially correct. Legal representation as a general rule is not allowed in cases where an employee has been dismissed for misconduct. Legal representation is allowed for all other matters which do not involve dismissal for misconduct.

If you have an employee who maybe a lawyer part time but also employed on a full-time basis by your company, that person will not be affected because he would be representing your company not as a lawyer rather as an employee.

If you are not able to get someone within your company to represent you at the CCMA or Bargaining Council in a case involving misconduct you can still send a legal representative e.g. an attorney to represent you. However, the legal representative will have to make an application in which these four grounds are put succinctly for the CCMA or Bargaining Council to consider:

1) Complexity of the matter e.g. that the matter is too complex for an ordinary person or employee to be able to sufficiently handle

2) Comparability e.g. that the people involved on one side are legally qualified or able to deal with the nature of the matter therefore there is a need for balancing which can only be achieved if legal representation is allowed.

3) Questions of law e.g. there are questions of legal nature that would need to be answered during the hearing and only legally trained people can be able to articulate such otherwise there would be prejudice.

4) Public interest e.g. the matter involves legal principles which are important and belong to public interest category as the public would benefit from the matter and a legal trained person can be able to articulate the public interest point better.

So if you decide to use the services of attorneys at CCMA or Bargaining Council for a misconduct hearing, please firstly ensure that they apply in advance for legal representation to be allowed. If your attorneys simple rock up at CCMA or Bargaining Council without having applied, they may be kicked out and the employer be given an hour to attend to the hearing failing which the matter will proceed as unopposed.

Article by Index Consulting team

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